On Lawyers, Librarians and Luddites

Hello, All:

Apropos “Library 2.0 In Action” (Nov 24/06) and Simon F’s “Why is it that librarians are leagues ahead of lawyers in this sort of thing? Huh?

With apologies to L. Carroll, because I’m inverting his question, we might as well ask: “why isn’t a raven like a writing desk?” The legal profession being, on the whole, what it is, the answers we’ll get will probably be even less useful, and nowhere near as humorous. (Those who’ve had the misfortune to have to read anything I’ve had published recently will probably have seen my tendency to quote from Carroll, so I’m merely being … consistent.)

I’ll leave it to those who have first hand knowledge to comment about what’s going on in the academies. Many practictioners, even from the older generations, aren’t quite as Luddite-like as one might expect from our hide-bound profession. Here’s the URL (it’s also typed in full below) and the abstract of an article by a few members of the U.S. academic branch of the profession who at least imply that U.S. practitioners are somewhere near librarians (professionally speaking, that is).

Richard K. Sherwin, Neal Feigenson, and Christina Spiesel, “Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law” (February 20, 2006). ExpressO Preprint Series. Working Paper 979.

http://law.bepress.com/expresso/eps/979

ABSTRACT: Law today has entered the digital age. The way law is practiced – how truth and justice are represented and assessed – is increasingly dependent on what appears on electronic screens in courtrooms, law offices, government agencies, and elsewhere. Practicing lawyers know this and are rapidly adapting to the new era of digital visual rhetoric. Legal theory and education, however, have yet to catch up. This article is the first systematic effort to theorize law’s transformation by new visual and multimedia technologies and to set out the changes in legal pedagogy that are needed to prepare law students for practice in the new environment. The article explores the consequences for legal theory and practice of the shift from an objectivist to a constructivist approach to human knowledge, using an expanded, multidisciplinary understanding of rhetoric to analyze the elusiveness of evidentiary truth and the nature and ethics of persuasion in the digital era.

SUBJECT AREA: Dispute Resolution; Evidence; Jurisprudence; Law and Society; Law and Technology; Legal Profession

A quick glance beyond the abstract suggests it’s worth reading.

Simon has, in what was no doubt a moment of temporary weakness, allowed me to join as an occasional contributor. Anybody familiar with my scholarship resumé will know why. I’ll try to be a bit more consistent, here.

Cheers,

David Cheifetz

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Comments

  1. Very good article. I wonder if professors (especially the oler ones), would be able to give up their controol of the classroom into the focus group that the authors suggest. It is true that law schools now have more digitized classrooms to facilitate this sort of teaching. However, I think it will take longer to get the professors to be willing to change their teaching styles.

  2. Now that I’ve (somewhat) read the piece – I got bored of it very quickly and started skimming – it’s a too long collection of words in which the authors explain why we now know that a picture is worth more than a 1000 words. It seems to me that there’s nothing new in the article that hasn’t been said elsewhere. Whether it’s been said better isn’t for me to say.

    Law is a “dispute resolution sytem”. Any dispute submtted to dispute resolution system has two overall categories of question:

    (1) what happened and
    (2) what is the signficance of what happened.

    However, those categories aren’t unique to dispute resolution systems. They’re the categories of any inquiry.

    If the system is law, (2) becomes “what is the legal significance of what happened”. The paper says nothing about (2), nor does it attempt to.

    This article is about category (1), about more effective ways, given what we’ve learned about the way people process information and come to conclusons, to convince the decision- maker that your view of what happened is what the decision-maker should decide happened (implicitly, even if that isn’t what happened).

    Putting things another way, it’s about how to best convince somebody that your view of the truth is the truth of what actually happened (even if it isn’t actually the truth, whatever “actually” means, whatever “truth” means”, whatever “happened” means).

    It’s a piece written for the American jury trial system where, borrowing a prescient couplet from somebody more famous than I am: “All the world’s a stage, And all the men and women merely players”.

    Or, paraphrasing something H. Dumpty J is reputed to have said: it’s all about the power of persuasion – it’s about how to convince people that when you use a word or picture, it means exactly what you say it means, nothing more or less (even if it doesn’t).

    OK, Humpty didn’t say “of persuasion” or how “to convince”, but you get my point.

    The indoctrinated Winston Smith would have approved.

  3. Another point which I think the authors intentionally elided – or maybe they covered it and I missed it because my interest flagged (note the foreshadowing).

    The authors write about society transforming itself into one in whch visual literacy is at least as important, if not more important, than written literacy. It seems to me that all societies which aren’t literate have to be visually literate and visual literacy doesn’t vanish if written literacy appears; that is, that our society has always been visually literate. Mass written literacy is a recent development. If they’re right, then in strange way, the digital revolution – better, the interactive Internet – is the equivalent of the printing press.

    However, we live in an “instant” age: instant coffee, instant messaging, sound and picture bits and bites (pun intended), and instant gratification: in short, a world of short, shorter and ever-shortening attention-spans. In fact, outside of worlds such as athletics and the domains of the little blue pill and its competitors, there’s a push for everything to be shorter and faster. And, easier. Written literacy requires work. Verbal rhetoric requires less work or at least easier work (I think). Visual rhetoric might once have required high levels of skill. Some people are artists. Most aren’t. (Visit any outdoor art display.) Pictures make rhetoric easier and modern techniques have brought the skills of visual rhetoric within the easy reach of most.

    What does that mean? Well … PT Barnum may not have said “There’s a sucker born every minute…and two to take ‘em.”* but that doesn’t matter. He’d have been a master in today’s world. The path to the mark is that much easier.

    *http://en.wikipedia.org/wiki/There’s_a_sucker_born_every_minute